Judicial Activism and Accountability

There is another dimension to judicial accountability which has arisen in recent times as a result of what some people call judicial activism while others consider it as legitimate exercise of judicial function under the Constitution. To be able to make a balanced view of judicial accountability in this regard, one has to make a correct appreciation of the role and responsibility of Superior Courts. Of course, the job of every judge is to settle dispute according to the law. In the case of High Court and Supreme Court judges, the Constitution specifically enjoins them to check the excesses of the executive of government maintained rule of law and democracy and protect the basic rights of citizens under all circumstances. 

For this, the court is specifically authorized by the Constitution to exercise the power of judicial review and evolve its own procedure to deliver complete justice. One can debate whether the judicial branch has too much power and whether they should be restrained in the exercise of that power. But no one can deny that assignment of power to judiciary is part of the Constitutional design and is intended to be exercised in the larger interest of democracy, human rights and good governance. 

Power brings with it responsibility too. If laws are not implemented and a citizen is aggrieved, it is the Constitutional role of the judiciary to exercise its powers and compel the Executive to fulfil its obligations under law. That is what rule of law is about. In this process the judiciary has to use, if necessary, the contempt of power as well. This is perceived as activism by many. The exercise of environmental jurisdiction which irked State and Central Governments is often cited as an example of judicial activism. But it helped better governance and promoted sustainable development and, as such, to be welcomed as part of Constitutional Governance. 

There may be instances in which the Court has exercised jurisdiction or issued orders where it could have been avoided. As in any other system of decision making, there can be wrong decisions with the judiciary as well. Certain judges have shown the humility to admit mistakes and correct themselves. In other cases, larger benches or appellate courts have restored the balance. 

In some cases, judges have admitted that they are making the law and tried to justify it in terms of existing judicial practices and rules of interpretation. The accountability in these situations are established in terms of the legitimacy of the ruling and the credibility of the reasoning. Judgements are to be judges in terms of the justice they deliver and the legitimacy (not merely legality) of the reasoning advanced rather than on notions of activism and restraint. 

Judged from the above standards, Indian Courts have displayed an admirable sense of Constitutional Accountability whether it is in the sphere of custodial justice, environmental justice, gender justice, justice to minorities or weaker sections. Invocation of PIL, Lok Adaalat, basic structure and continuing mandamus are some of the products of judicial activism which enhanced public confidence in the judiciary and strengthened its capacity to render justice. As such, it must be considered as positive signs of judicial accountability, particularly in terms of institutional accountability.


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